Congress is now considering legislation that would extend the existing
terms of copyright protection by an additional 20 years. This essay explains
why the adoption of this legislation would deal a severe blow to the progress
of United States culture and scholarship. If the bills have not become
law by the time this essay appears, it seeks active support against the
bills from everyone who, personally or professionally, is concerned with
the maintenance of a vibrant and viable public domain as a basis for the
creation of new works and unfettered scholarship. If, sadly, the bills
have in fact become law, this essay may at least stand as a requiem for
the unnecessary and indeed wasteful death of a major portion of our public
domain.

This book is aimed primarily at librarians. Therefore, while defeat
of the extension legislation is of vital importance to nearly all scholars
and other creative persons, a few words directed particularly to librarians
are in order. Libraries and librarians collect, categorize, archive, maintain
and make available works whose primary function is to deliver information
(including information in the form of entertainment). Many of these works
are protected under copyright law. Compliance with copyright by librarians
in carrying out their social role has become increasingly complex, especially
in view of the rapid growth of digital networks.(1)
Given the already very long term of copyright, however, it might appear
that extension of the term would not greatly exacerbate these compliance
difficulties. After all, the majority of works handled by libraries and
librarians are likely to be under copyright even without any further extensions.
Under this view, librarians may not feel overly concerned with the extension
proposals.

This view, however, is both short-sighted and fundamentally at odds
with the traditional role played by librarians, both in the development
of our social culture in general and with respect to copyright legislation
in particular. Copyright legislation typically involves heavy negotiation
between the interested private parties, with Congress largely playing the
role of mediator.(2) This process can leave
the general public underrepresented when legislative compromises are made
between owners' and users' rights.(3) Librarians
and educators have traditionally been among the most vocal and most effective
opponents of the trend toward ever broader, stronger and longer copyright
rights, not just or perhaps even primarily because of direct professional
interests in lower prices and freer use but also because of a more fundamental
commitment to the broader public interest.

A vibrant and growing public domain is a vital part of that public interest.
Yet, the librarians as a group have been notably silent on the question
of the copyright extensions. Apparently more immediately pressing are questions
of copyright regulation in the digital network environment, the National
Information Infrastructure, and the White Paper.(4)
There is no doubt about the importance of these issues, but it is also
true that we will almost surely be forced to rethink in a few years whatever
solutions we come up with today, after the rapid development of the underlying
technology settles down and we are able to see the issues with better clarity.
The copyright extensions, however, if adopted, will result in a devastating
and permanent 20-year loss to the public domain, with no public benefit
and incalculable potential harm to the healthy progress of science and
culture. Now perhaps more than ever these traditional effective voices
on behalf of the public interest need to be heard by Congress.

II. THE PROPOSED LEGISLATION

Under the Copyright Act of 1976, as amended prior to the extension legislation,(5)
copyright on post-1977 works lasts for 50 years beyond the death of the
author, or for 75 years in the case of works made for hire.(6)
Copyright on works published before 1978 continue for 75 years from publication.(7)
Pre-1978 unpublished works remain under copyright for these same periods,
but in no event does the copyright expire before the year 2003; if published
before 2003, the copyright continues until 2028.(8)
These works may be as old as our Republic or even older, such as letters
or diaries of the founding fathers, provided they were never published
prior to 1978 (when unpublished works were first brought into the federal
copyright system).

The proposed legislation would extend the terms of all copyrights, including
copyrights on existing works, by 20 years: for individual authors, the
copyright term would continue for 70 years after the death of the author,
while corporate authors would have a term of protection of 95 years. Unpublished
or anonymous works would be protected for a period of 120 years after their
creation. Copyrights in pre-1978 unpublished works will continue to the
year 2003; if these already ancient works are published prior to 2003,
their copyrights would continue in force through the year 2047.

A. Why Extension is a Bad Idea

Various arguments have been offered in support of extension. Some say
that the extension is necessary as an incentive for the creation of works.
Others argue that the current period for individual authors -- 50 years
after the individual's death -- was intended to provide an income stream
for two generations of descendants and that the longer human life span
now requires a longer copyright term. Some maintain that we should adopt
an extended term because the countries of the European Union have done
so, in order to "harmonize" our law with theirs. Still others
claim that the longer copyright term is necessary to prevent royalty inequality
between United States and European copyright owners.

None of these arguments considers the costs to the public in this country
of an extended copyright term. Moreover, as shown in more detail in later
sections of this chapter, the arguments are either demonstrably false or,
at best, without foundation in empirical data. If incentives were the issue,
there would be no need to extend the copyrights on existing works, even
if one were to accept the dubious proposition that the extra 20 years provide
an incentive for the creation of new works. If we were worried about two
generations of individual descendants, we should prohibit the first generation
from selling the copyright outright, and we would have no need to extend
the term for corporate authors. Harmonization, while overvalued in any
event, is not achieved under the proposed legislation. The supposed royalty
inequality, too, fails to provide a basis for extending the term -- we
do not blindly follow Europe's welfare legislation in other areas, and
Europe's choice to supply extended welfare to "its" copyright
owners provides no basis for our doing the same. (Because supporters of
extension consistently and unjustly try to portray the bills as benefiting
creators and authors,(9) it is particularly
important to bear constantly in mind that extension benefits copyright
owners and not creative authors, who will already have been
dead for 50 years.) Moreover, the cost to the general public in the United
States vastly exceeds even the gains to those relatively few copyright
owners who would benefit from the extension, and the public receives no
compensating benefits.

Once the errors in the arguments for increasing the term have been exposed,
the real reason for the legislation becomes clear: the maintenance of royalty
revenues from those relatively few works from the 1920s and 1930s that
continue to have significant economic value today. The continued payment
of these royalties is a wealth transfer from the U.S. public to current
owners of these copyrights. These copyright owners are in most cases large
companies and, in any case, may not even be descendants of the original
authors whose works created the revenue streams that started flowing many
years ago.

The works about to enter the public domain, absent this legislation,
were created in 1922. At that time and for many years thereafter, society's
"bargain" with the actual authors was a period of exclusive rights
under copyright for a maximum of 56 years. Those authors produced and published
their works with the understanding that the works would enter the public
domain 56 years later. Yet, notwithstanding that bargain, the period was
extended by 19 years in 1976 to 75 years.(10)
Then, 19 years later, these same copyright owners returned to Congress
seeking yet another extension to continue the wealth transfer for another
20 years.

This wealth transfer from the general public in this country to copyright
owners is, moreover, only a part -- probably a small part -- of the total
cost that we and coming generations will bear if the extension is adopted.
It is important to remember that the extension would apply to foreign works
as well as those produced in the United States. Therefore, in order to
maintain a flow of revenue to the owners of domestic copyrights, the general
public will continue to pay on foreign copyrights from the 1920s whose
terms must also be extended. No one has shown that there will even be a
net international inflow of royalties from the works at issue.

Even worse, to maintain the royalty revenues on those few works from
this period that have continued economic viability, the copyrights must
be extended on all works. This includes letters, manuscripts, forgotten
films and music, out-of-print books, and much more, all potential sources
on which current authors and scholars could otherwise base new works.
Copyrights can and usually do have very complicated multiple ownership
so many years after an author's death. The transaction costs of negotiating
for use can be prohibitively high, even for works that no longer have economic
value. None of the arguments for extension take into consideration the
loss to both revenue and culture represented by the absence of valuable
new works that are not created because underlying works that would
have served as a foundation remain under copyright. The magnitude of this
loss, of course, can never be known, but that makes it no less real or
substantial.

Senator Hatch has offered as an argument in support of the extension
the music of Walter Donaldson in the 1927 film "The Jazz Singer."(11)
The Senator says, "The historical significance of that motion picture,
the first sound film to be commercially released, can hardly be overstated."(12)
It would, of course, be fatuous to assert that extended copyright is necessary
as an incentive for the preservation of a film of such historical importance.
Indeed, it is precisely the historical significance of the film that calls
most strongly for allowing it to go into the public domain, so that film
historians and others can make full and effective use of it. As long as
it remains under copyright, many important uses of this cultural milestone
will die aborning because of the transaction and royalty costs involved
in obtaining permission from the copyright owners.

The creation of new works is dependent on a rich and vibrant public
domain. Without good reason to expect a substantial compensating public
benefit, we should not risk tying the hands of current creative authors
and making them less competitive in domestic and international markets
just to supply a financial windfall to owners of copyrights in works created
long ago. Santa Claus and the Easter Bunny are justly part of the public
domain that anyone can use every Christmas and Easter season. Eventually
Mickey Mouse and Bugs Bunny should also join our freely available cultural
heritage. That is a crucial part of the copyright "bargain" that
the public made at the time these works were created.

III. UNITED STATES COPYRIGHT POLICY

Both Congress and the courts have uniformly treated U.S. copyright law
as an instrument for promoting progress in science and the arts to provide
the general public with more, and more desirable, creative works:

The limited scope of the copyright holder's statutory monopoly, like
the limited copyright duration required by the Constitution, reflects a
balance of competing claims upon the public interest: Creative work is
to be encouraged and rewarded, but private motivation must ultimately serve
the cause of promoting broad public availability of literature, music,
and the other arts. The immediate effect of our copyright law is to secure
a fair return for an "author's" creative labor. But the ultimate
aim is, by this incentive, to stimulate artistic creativity for the general
public good.(13)

U.S. copyright tradition is in this respect philosophically different
from that of many other countries that treat intellectual property as natural
rights of individual creators. Under our system, Congress need not recognize
intellectual property rights at all, but if it does, the purpose must be
to promote innovation in science and the useful arts.

Our system of copyright protection is delicately balanced. We recognize
exclusive rights in creators so that consumers have available an optimal
number and quality of works but want those rights to be no stronger than
necessary to achieve this goal.(14) We
do not recognize new intellectual property rights, or strengthen old ones,
simply because it appears that a worthy person may benefit; rather, we
do so only for a public purpose and where it appears that there will be
a public benefit. The current statutory foundation of copyright protection,
the Copyright Act of 1976, is itself the product of lengthy debate and
represents innumerable compromises that seek to achieve the proper balance
between private returns to authors and public benefit, including a broad
public domain that permits current authors to build on the cultural heritage
from those who have come before them.

Former Representative Kastenmeier, the primary architect of the current
statute, recognized this point very clearly and has set forth the conditions
that should be met by persons seeking change in the copyright balances:
(1) The proponent should show that the new interest will not violate existing
principles or basic concepts. (2) The proponent should present an honest
analysis of all the costs and benefits. (3) The proponent should show how
recognizing the new interest will enrich or enhance the public domain.(15)
In sum, "the proponents of change should have the burden of showing
that a meritorious public purpose is served by the proposed congressional
action."(16)

On these ground rules, the proponents of a life + 70 year period of
copyright protection have not met their burden of proving that the change
does not violate basic U.S. copyright principles, that the public benefits
outweigh the costs, or that the public domain will be enriched. On the
contrary, the public domain will not be enriched but rather will be diminished.
If this loss to the public domain is not balanced by a greater incentive
to create new works, the public benefits will not outweigh the costs. And
this means that we would be violating our basic principle establishing
the general public good as the ultimate aim of the copyright system.

The extension proponents have made no effort to show that the public
benefits from its enactment would outweigh the costs. Indeed, they have
demonstrated no public benefit whatsoever and have barely attempted to
do so. Yet, the public cost in the form of a diminished public domain is
obvious. As demonstrated below, this public cost is not offset by any increased
incentive to create new works; nor does international trade in intellectual
property rights fill the gap between public costs and public benefits.

Europe, whose copyright law is based more on a natural rights tradition,
has recently moved to a life + 70 regime for individual authors and a 70-year
period of protection for corporate authors. That should not cause us to
change our underlying intellectual property philosophy. Nor does it provide
a reason for avoiding the careful cost/benefit analysis called for by that
philosophy. The United States joined the Berne Convention for many good
reasons, one of which was to become an influential leader in world intellectual
property policy. Our underlying policy has served us well, as shown by
our dominant position in the worldwide markets, particularly for music,
movies and computer software. Rather than following Europe we might better
seek to persuade Europeans that our approach to intellectual property rules
both rewards creativity and promotes economic efficiency.

IV. TANGIBLE VERSUS INTANGIBLE PROPERTY

Given that the current extension proposals follow so quickly after the
expiration of the 19-year extensions for pre-1978 works effected by the
1976 Act, we justifiably fear that these same copyright owners (or their
descendants) will be back in 20 years with proposals to extend again --
their ultimate dream, an essentially perpetual copyright term. Therefore,
it may be worthwhile to say a few words about the nature of intellectual
property in general and why we have always treated it differently from
tangible property.

A pure natural rights theory does not distinguish between the two types
of property. If I make a coffee table, it's mine until I or my heirs sell
it, and then it belongs to the new owner, and so on ad infinitum (at least
until the table disintegrates). In other words, property rights in tangible
property are perpetual. If I write a song, natural rights theorists ask
why the song isn't equally "mine" until transfer under a perpetual
property rights system.

Of course, no country follows a pure natural rights theory for intellectual
property. Under such a theory, not only would there be no limitations on
the duration of patents, many of which are at least as intellectually creative
as the bulk of copyright-protected works, but we would not distinguish
between idea and expression in determining the scope of copyright protection.
Often the most creative aspect of a work is its underlying "idea."
Nothing in pure natural rights theory can tell anyone where to draw the
line between protected and unprotected elements of works. This line-drawing
problem is, in fact, one of the most important policy problems in copyright
law, as judges and legislators seek to draw a balance between creation
incentives and the social desirability of allowing others to make further
developments. We have concluded that the free use of "ideas"
results in more works from subsequent authors than we lose by failing to
protect them. In any event, for present purposes it is sufficient to note
that, for policy reasons, there are someunprotected elements of
a copyright-protected work. To the extent these elements are, indeed, the
product of a particular person's intellectual creativity, natural rights
theory cannot tell us why they go unprotected.

The traditional cost/benefit analysis on which U. S. law is based does
not have these problems. We protect works, and elements of works, to the
extent necessary to maximize the public benefits. A copyright term no longer
than that necessary to provide a creation incentive follows as a matter
of course from the fundamental difference between tangible and intangible
property: intellectual property is a nondepletable commons. "The tragedy
of the commons" for tangible property is that failure to recognize
transferable property rights in tangible property leads inevitably to "overgrazing."
Recognition of property rights leads to economic efficiency, because a
rational owner will optimize the balance between present and future consumption.
There can be no overgrazing of intellectual property, however, once a work
is created, because intellectual property is infinitely multipliable without
destroying the original. No matter how many people copy or use someone
else's idea or even "expression," the author still has it and,
absent legal intervention recognizing exclusive rights of some kind, can
still make full use of it. If works would be created in optimal numbers
without the incentive of copyright, economic theory tells us that the period
of protection should be zero. We believe, however, that many authors depend
on the expectancy of being paid something for their works in order to earn
a living, so without any protection we are unlikely to have available as
many works as the natural talents of our authors would permit.

Therefore, the different rights we recognize in tangible and intellectual
property are a matter of economic efficiency. Equating the two types of
property for legal purposes requires justification for switching to an
economically inefficient result. At a minimum, that requires the proponents
of the extension to admit openly and forthrightly that they are seeking
a new basis -- presumably some form of natural rights basis -- for our
concepts of property rights.

The following sections consider in some detail the arguments put forward
to oppose the extension. First, the very real and substantial costs to
the public that would result from adoption of this legislation are considered
-- costs that are ignored by the arguments of its proponents. This is followed
by a demonstration that the arguments in favor of the extension are either
logically fallacious or unsupported by any plausible evidence.

V. COSTS OF A LONGER PROTECTION PERIOD

While the asserted public benefits of an extended copyright protection
period range from speculative to nonexistent, two identifiable costs are
real and substantial. The first is the economic transfer payment to copyright
owners during the period of the extension from consumers or other producers
who would otherwise have free use of works. The second is the cost to the
public of works that are not produced because of the diminished
public domain.

A. Economic Costs and Transfers

The direct economic costs of a 20-year-longer period of protection,
although difficult to calculate precisely, include the higher cost to the
consuming public for works that would otherwise be in the public domain.
That these costs are substantial is shown by the very claims of the proponents
of this legislation that they will miss out on the European windfall if
we do not extend our term to that of Europe. This windfall does not arise
out of whole cloth. Rather, it is ultimately paid by consumers, that is,
by the general public. And if Europeans will be paying for the right to
use U.S. works in Europe, the U.S. public will be paying for the right
to use both domestic and European works here at home, increasing the windfall
to copyright owners at the expense of U.S. consumers.(17)

In the legislative history of the Copyright Act of 1976, it was argued
that the general public received no substantial benefit from a shorter
term of protection, because the cost for works in the public domain was
frequently not significantly lower than that for works still under copyright.(18)
Even without the fervor of the special interest protagonists of this legislation,
however, economic theory dictates that the price to the public for popular
works must, through competition, decrease to the marginal cost of producing
the work. If the work is under copyright, the marginal cost of production
would have to include the royalty owing to the copyright owner, even if
there is general licensing to competing producers of the work. Moreover,
if there is no general licensing of a copyright-protected work, the price
can be expected to be set at the level that maximizes the return of the
copyright owner. Consequently, any claim that the public pays the same
for public domain works as for protected works is implausible, at least
in general.(19) Educational and scientific
uses would also seem to be large markets for public domain works. At a
time of rising educational costs we should inquire into the effect on our
schools of a reduced public domain due to an extended protection period.
Something more than anecdotal evidence should be presented before we accept
the claim that the consuming public will not incur higher costs from the
longer period.

B. Cost of a Diminished Public Domain

An even more important cost to the public is that paid in desirable
works that are notcreated because of the continuing copyright in
underlying works:

More than a nodding acquaintance with the concept of public domain is
essential to comprehension of intellectual property law and the role of
the United States Congress in creating that law. The addition of a creation
to the public domain is an integral part of the social bargain inherent
in intellectual property law.(20)

While primary control over the work, including the rights to refuse
publication or republication and to create derivative works, properly remains
in the author who has created it, giving such control to distant descendants
of the author can deprive the public of creative new works based on the
protected work. Artistic freedom to create derivative works from the public
domain is a significant public benefit, as shown by musical plays like
Les Miserables, Jesus Christ Superstar, and West Side
Story, the recent spate of high production quality films based on the
works of Shakespeare(21) and Jane Austen,
satires like Rosencrantz and Guildenstern are Dead, and even literary
classics like James Joyce's Ulysses. Although these might not necessarily
be considered infringing derivative works even if the underlying work were
under copyright, or might be excused by the fair use doctrine if otherwise
infringing, their authors must necessarily take a cautious approach if
a license is unavailable. When copyright subsists long after an author's
death and there is no provision for compulsory licensing, the creation
of derivative works that closely track a substantial part of the underlying
work can be absolutely prohibited by copyright owners who have no creative
relationship with the work at all. Authors of histories and biographies
can also be inhibited from presenting independent analyses of earlier authors
and their works by descendants who, for whatever personal reason, use copyright
to prevent the publication of portions of protected works.

An important cost paid by the public when the copyright term is lengthened,
therefore, is contraction of the public domain. The public domain is the
source from which authors draw and have always drawn.(22)
The more we tie up past works in ownership rights that do not convey a
public benefit through greater incentive for the creation of new works,
the more we restrict the ability of current creators to build on and expand
the cultural contributions of their forebears. The public therefore has
a strong interest in maintaining a rich public domain. Nobody knows how
many creative works are not produced because of the inability of
new authors to negotiate a license with current copyright holders, but
there is at least anecdotal evidence that the number is not insubstantial.(23)
Unless evidence is provided that a life + 70 regime would provide a significant
added incentive for the creation of desirable works, the effect of an extension
may well be a net reduction in the creation of new works.

This point may be highlighted by the rapid developments now occurring
in digital technologies and multimedia modes of storing, presenting, manipulating,
and transmitting works of authorship. Many multimedia works take small
pieces of existing works and transform them into radically different combinations
of images and sounds for both educational and entertainment purposes. The
existing protection period, coupled with termination rights, may well be
distorting or inhibiting the creation of valuable multimedia works because
of the transaction costs involved in negotiating the number of licenses
required. Ultimately, the rapid changes in the intellectual property environment
for creating and disseminating works may necessitate a reassessment by
the international community of the underlying intellectual property rules.
In the meantime, extending the protection period can only exacerbate this
problem. The United States should be leading the world toward a coherent
intellectual property policy for the digital age and not simply following
what takes place in Europe.

VI. REBUTTAL OF ARGUMENTS IN FAVOR OF THE EXTENDED COPYRIGHT
TERM

A. Incentives for the Creation of Works

It does not follow that a longer term automatically drives creative
authors to work harder or longer to produce works that can be enjoyed by
the public. Indeed, there is necessarily a type of diminishing return associated
with an ever-longer protection period, because the benefit to the author
must be discounted to present value. As Macaulay observed over 150 years
ago:

[T]he evil effects of the monopoly are proportioned to the length of
its duration. But the good effects for the sake of which we bear with the
evil effects are by no means proportioned to the length of its duration
... [I]t is by no means the fact that a posthumous monopoly of sixty years
gives to an author thrice as much pleasure and thrice as strong a motive
as a posthumous monopoly of twenty years. On the contrary, the difference
is so small as to be hardly perceptible .... [A]n advantage that is to
be enjoyed more than half a century after we are dead, by somebody, we
know not by whom, perhaps by somebody unborn, by somebody utterly unconnected
with us, is really no motive at all to action (24)

Thus, while an additional year of protection has little or no incentive
effect at the time of a work's creation, the costs are immediate
and substantial if the extension is to apply to existing works, as provided
in the proposed legislation.

The copyright industries are by their nature very risky, and no one
in these industries makes financial decisions based on even 50-year, let
alone 70-year, projections. Moreover, under the U.S. Copyright Act, most
transfers of copyright by an individual author may be terminated 35 years
after the grant.(25) The existence of these
inalienable termination rights in individual authors makes it even more
unlikely that anyone would pay an author more to exploit a work under the
extended term than would be paid under the current life + 50 period.(26)
The extension, therefore, holds little promise of financial benefit to
individual authors.

The absence of any additional incentive for corporate authors from the
extension of the copyright period to 95 years is also easily seen. Consider
an assured $1,000 per year stream of income. At a discount rate
of 10%, the present value of such a stream for 75 years is $10,992, while
the present value of a 95-year stream is $10,999, a difference of less
than 0.1%. Even at a 5% discount rate, the present values are only $20,485
and $20,806, respectively, a difference of about 1.5%. And these minuscule
present value differences are for guaranteed streams of income. When risk
is factored into the analysis, the present value of a 75-year stream and
that of a 95-year stream must be considered essentially identical. The
chance that a given copyright will still have nontrivial economic value
75 years after the work is created is very small -- only a tiny fraction
of all works retain economic value for such a long time. No company will
take the "extra" 20 years into consideration in making a present
decision to invest in the creation of a new work. In fact, an ongoing successful
company like Disney is more likely to be spurred to the creation of new
works like The Lion King or The Little Mermaid because it
realizes that some of its "old reliable" moneymakers, like Mickey
Mouse, are about to enter the public domain.

Some have argued that the longer terms would give film companies more
valuable libraries, the income from which could be used to finance new
films. This superficially appealing argument, however, flies in the face
of ordinary free-market economic theory. What film company is going to
change its willingness to invest in risky projects just because it has
more money in its pockets? Of course all film projects are risky, and many
mistakes are made that require offsetting moneymakers to remain in business.
But there is no reason to think that Disney, for example, will use whatever
"extra" money it earns from extended copyrights on old works
to make riskier new films rather than distribute the profits to its shareholders
or increase the "perks" enjoyed by its management.

It is therefore extremely unlikely that an additional 20 years of protection
tacked onto the end of a copyright protection period that is already very
long will act as an incentive to any current author to work harder or longer
to create works that would not have been produced in any event. What is
certain, however, is that extension would seriously hinder the creative
activities of future as well as current authors. Consequently, the only
reasonable conclusion is that the increased term would impose a heavy cost
on the public -- in the form of higher royalties and an impoverished public
domain -- without any countervailing public benefit in the form of increased
authorship incentives.

Indeed, if incentives to production were the basis for the proposed
extension, there would be no point in applying it to copyrights in existing
works. These works, by definition, have already been produced. Yet, if
the extension were purely prospective (i.e., applicable only to new works),
we could be certain that support for it would wither rapidly. Thus, the
real issue is the continued protection of old works -- not those
that will enter the public domain 50 (or 70) years from now but rather
those due to enter the public domain today. These works were originally
published in 1922 (works published before 1978 have a flat 75-year copyright
rather than the current life + 50 for individual authors). At that time,
the law afforded a maximum of 56 years of copyright protection. This period
was expanded to 75 years in 1976, and now the descendants and assignees
of these authors want yet another 20 years. The very small portion of these
works that have retained economic value have been producing royalties for
a full 75 years.

To continue the royalty stream for those few copyright owners, the extension
means that all works published after 1921 will remain outside the
public domain for an extra 20 years. As a result, current authors who wish
to make use of any work from this period, such as historians or
biographers, will need to engage in complex negotiations to be able to
do so. Faced with the complexities of tracking down and obtaining permission
from all those who by now may have a partial interest in the copyright,
a hapless historian will be tempted to pick a subject that poses fewer
obstacles and annoyances.

B. Copyright in Works Never Published Prior to 1978

Until the effective date of the Copyright Act of 1976, works that had
never been published were protected against publication without the author's
permission under state or common law. Only published works were governed
by the federal copyright statute. However, the 1976 Act preempted state
protection for unpublished as well as published works and, as a quid pro
quo for the loss of perpetual state protection, recognized a copyright
in these previously unpublished works until the year 2003. As an incentive
to publication of these works, the current law also extends their copyrights
through the year 2027, provided they are published prior to 2003. The proposed
legislation would extend this period by 20 years, so that a previously
unpublished work will be protected until 2003 and, if published prior thereto,
it will remain under copyright through the year 2047.

An example is the recently discovered fragment from a draft of Mark
Twain's Huckleberry Finn. The copyright on the published novel was
registered in 1884, renewed by Twain's daughter in 1912, and expired in
1940. Even if a life + 70 system had been in place at the time of the work's
creation, the copyright would have expired in 1980, along with everything
else Mark Twain wrote (because he died in 1910). Because this story of
Huckleberry Finn and Jim in the cave has now been published, however, current
law 6/10/97recognizes the copyright until 2028. Under the proposed extension,
the copyright on this story, already over 110 years old, will continue
until the year 2048.(27)

No arguments of any kind have been offered in support of this particular
extension of the copyright period of protection.(28)
In contrast to the Mark Twain fragment, most of these works have only scholarly
value, because if they were readily available and had economic value, they
would already have been published. Moreover, many of these works are truly
ancient -- letters and diaries from the founding fathers, for example --
and constitute a vital source of original material for historians, biographers,
and other scholars.

Obviously, the normal copyright incentive to creative authorship is
not involved here. This is simply an incentive to current owners of copyrights
in very old works to find the works and publish them so that they will
be accessible to everyone. By the year 2003 we will already have afforded
the very distant descendants of the authors of these works 25 years of
protection, plus the possibility of 50 years of protection if they find
and publish the works. There is no justification for extending their term
of protection through 2047. Fifty years of copyright protection for such
old works, in favor of people who have no creative relationship with the
works at all, is more than enough.

C. Support for Two Generations of Descendants

It is also argued that the copyright protection period was initially
designed to provide a source of income to two generations of descendants
of creative authors. Given the longer life spans of today, the argument
goes, a longer term is necessary to achieve this goal.

Far from requiring longer copyright terms to compensate for longer life
expectancies, however, these actuarial changes are an argument for keeping
the current term of life + 50, or perhaps even reducing it, because the
longer life expectancy of the author automatically brings about
a longer period of copyright protection. A longer overall life expectancy,
moreover, does not in itself imply that the second generation loses anything
in comparison with earlier eras. The crucial age for the second generation
is not the absolute number of years grandchildren may be expected to live
but rather the number of years they survive after the author's (i.e., their
grandparent's) death. The copyright period is measured from the death of
the author, and if grandchildren are living longer, so too are authors
themselves. Certainly no one has provided data to show that grandchildren
of today have significantly longer life expectancies than today's grandparents,
let alone 20 years longer. Consequently, we should expect the current cohort
of authorial grandchildren to remain alive for roughly the same length
of time after their grandparents' deaths as at other times in this century.

Second, protection of two generations of descendants is not the inevitable
result of a longer protection period. The copyright in a work that has
been exploited and become popular will often have been transferred by the
author or his or her descendants. Any termination rights with respect to
the transfer will have already been exercised before the descendants in
question here ever come into the copyright picture.(29)
It is very likely that the copyright will have been retransferred after
any termination before the current life + 50 year period has expired. Unless
these transfers provide for a continuing royalty, there will be no royalties
for the author's descendants who are alive thereafter. Moreover, even if
the transferee is under obligation to pay a continuing royalty, it cannot
be assumed that the royalty stream will accrue to distant relatives of
the original author, such as great-grandchildren. The royalty may well
be transferred outside the family, by will or otherwise, by earlier descendants.
If sustenance to two generations of authorial descendants is really the
goal, we should be considering prohibitions on transfers and/or stronger
termination rights rather than a longer term of protection.

Third, even the "natural law" argument on behalf of such distant
descendants of authors is very weak. These equitable claims to a continued
income stream obviously diminish with increasing temporal distance of descendants
from the creative author. More importantly, while one can understand the
desire of authors to provide a substantial estate to their immediate offspring,
one must question the economic efficiency of a system that, as a matter
of policy, seeks to grant an easy flow of income to a group of people the
majority of whom the actual author may never have known. The descendants
themselves would probably be better off, and certainly the general public
would be better off, if they were to engage in some productive activity.
U.S. copyright policy is not and has never been designed as a welfare system.
It is therefore not entirely flippant to say to these distant descendants
of creative authors who died 50 years ago what many now say to current
welfare recipients: "Get a job!"

Fourth, while the Directive in the European Union mentions protection
for two generations of descendants as one of 27 "Whereas" grounds
for the extension in Europe,(30) it has
never been recognized as a goal of U.S. copyright law. Indeed, today's
longer life expectancies were offered as a basis for the recent substantial
extension of the copyright term in 1976, from 56 years to life + 50 years,
without any mention of a "two generation" goal.(31)
Surely life expectancies have not increased since 1976 to justify an additional
20 years of protection on this ground. Going to our current life + 50 system
was necessary in order for the United States to join the Berne Convention,
and one could at least make a coherent argument that the benefits of joining
Berne might outweigh the costs of the diminished public domain resulting
from the longer copyright. The "two generation" argument, however,
is devoid of any relationship to a public benefit. This claim is therefore
fundamentally at odds with basic United States copyright principles and
the social bargain that places works in the public domain after the copyright
has expired.

Finally, even if "two generations of descendants" were a valid
basis for extending the copyright term for works of individual authorship,
it provides no justification whatsoever for extending the term for corporate
authors from 75 to 95 years.

In sum, the "two generations of descendants" argument is invalid
on its face, advocates economic inefficiency, fails to comport with basic
United States copyright principles, and is applicable at best to the term
for individual authors. It cannot serve as a basis for the diminished public
domain that the extension would effect.

D. "Harmonization" with European Law

The European Union has now directed its members to adopt a life + 70
term of copyright duration. Possibly because of the European natural rights
tradition, neither the proposal in Europe nor its adoption was based on
a careful analysis of the public costs and benefits of extending the term.
Nevertheless, some argue that we must do the same to "protect"
domestic copyright owners, against whom the "rule of the shorter term"
may be used to provide a shorter period of protection in Europe for U.S.
works (life + 50) than is given to European works (life + 70). They also
argue that harmonization of the worldwide term of protection is a desirable
goal in its own right and that failure to adopt the European term will
have an adverse effect on the United States balance of international trade.
This section considers the general harmonization goal. The next sections
deal with the supposed "prejudice" domestic copyright owners
and the balance of trade would suffer in Europe were we not to follow the
European example.

Harmonization of worldwide economic regulations can often be useful,
especially if differences in legal rules create transaction costs that
inhibit otherwise beneficial exchanges. In some cases harmonization can
be beneficial even if the uniform rule is in some sense less than ideal.
We need not seek uniformity for its own sake, however, especially if it
means compromising other important principles. If the United States determines
that works should belong to the public domain after life + 50 years, no
transaction cost problem is posed to U.S. authors by the longer period
in Europe. The ultimate owners of U.S. copyrights, of course, will be able
to exploit them for a shorter period, in both Europe and the United States,
but that is the result of our policy choice to make the works freely available
and not because of the absence of harmonization.

In addition, even if harmonization is desirable, the question remains,
who should harmonize with whom? Although doubts were expressed about the
constitutionality of a life + 50 year period of protection at the time
the Copyright Act of 1976 was adopted,(32)
that standard could then accurately be denominated international(33)and,
in any event was necessary if we were ever to join Berne. Life + 70 years
is not an international standard today, notwithstanding recent actions
in the European Union, nor will it become one without support from the
United States. It was not even the standard in Europe until the European
Council of Ministers, unilaterally and without international negotiation,
directed that its member states adopt a uniform term of protection equal
to the longest of any of its members. If the cost/benefit analysis required
by our copyright tradition does not justify changing the social policy
balances we have drawn, we would better use our influence to encourage
the rest of the world to remain with our standard, and Europe to return
to it, rather than follow a decision in Europe that was made without consideration
of the factors we have always deemed crucial to the analysis.

Moreover, the proposed legislation is not really aimed at harmonizing
U.S. and European law. It would, for example, extend the copyright period
for corporate "authors" to 95 years (or 120 years if the work
is unpublished). The European Union, by contrast, now offers corporate
authors, for countries recognizing corporate "authorship," 70
years of protection, which is less than the 75 years we currently offer
such authors. Consider also the works of Sir Arthur Conan Doyle, who died
in 1930 and whose works were in the public domain in England and Europe
since 1981, although the European extensions apparently have revivified
the copyrights until 2001. Works first published before 1978 have a 75-year
period of protection rather than the current life + 50 term, so those works
of Conan Doyle published in the 1920s remain under U.S. copyright, while
those published before 1922 are in the public domain. Because his last
work was apparently published in 1927,(34)
it is scheduled to go into the public domain in the United States at the
end of the year 2002, about the same time as the revived European copyrights
on his entire oeuvre. The extension would reintroduce "disharmony"
for his later works until the year 2022.

There are many other features of copyright law that are not "harmonized"
even within Europe, let alone between Europe and the United States, including
moral rights and the important concept of fair use. "Harmonization"
is therefore not in itself a valid ground for extending any of our current
copyright protection terms. It is simply a high sounding word behind which
the special special interests supporting the U.S. extension bills are hiding
-- to keep the royalty streams flowing for another 20 years, during which
time they will keep working toward their ultimate dream of perpetual copyright.

E. Unequal Treatment of United States Copyright Owners

In addition to lengthening the copyright term for individuals to life
+ 70 years, the European Union has adopted the "rule of the shorter
term," under which works are protected only for the shorter of the
European term or the term in the country in which the work originates.
Therefore, it is true that retaining the current term of protection would
deny some U.S. copyright owners the financial benefit of this European
windfall. But the mere fact that the European Union has adopted a bad idea
does not mean that the United States should follow suit. France might elect
in the future, for example, to give the works of Voltaire or Victor Hugo
perpetual copyright protection, but that would be no reason for us to do
the same with Mark Twain or Emily Dickinson. The European copyright tradition
differs in important ways from that of the United States, primarily by
treating copyright as a kind of natural entitlement rather than a source
of public benefit. The European approach may on balance tend to discourage,
rather than promote, new artistic creativity. We should not, therefore,
assume that a policy giving a few U.S. companies and individuals an added
financial windfall from works created long ago necessarily is one that
promotes our long-term competitiveness in the production of new works.

This extension proposal is perhaps an occasion to consider the special
character of U.S. copyright and the features that distinguish our law from
its continental counterparts. The constitutional concept of a limited term
of copyright protection is based on the notion that we wantworks
to enter the public domain and become part of the common cultural heritage.
It is worth noting that in this century the cultural productivity and international
market share of the United States has been much greater than that of Europe.
The genius of the American system is that it balances public and private
rights in such a way as to provide a rich collective source on which to
base new and valuable productions. This makes us wealthier not only culturally
but in a hard-nosed economic sense as well.

We must ask whether we really wish to remake our cultural industries
in the image of Europe. This is not, in fact, a conflict between Europe
and the United States. The real conflict, in both Europe and the United
States, is between the interest of the public in a richer public domain
and the desires of copyright owners (who may or may not be relatives of
authors) to control economic exploitation of the copyright-protected works
that remain in their hands. That Europe has resolved the conflict one way
does not mean that we should blindly follow suit.

The arguments for maintaining a rich public domain in the United States
are not diminished by the withdrawal of works from the public domain in
Europe, or even by the partial withdrawal of only "European"
works. If Europe protects "its" copyright owners for a life +
70 year period, its public domain is reduced, and the European general
public suffers a net loss. The United States public, however, as opposed
to individual copyright owners, is not harmed by the absence of protection
in Europe 50 years after the death of a U.S. author. Conversely, the public
will pay a real cost, both as consumers and as potential creators of new
works, to the extent the public domain is further reduced by the longer
protection period.

Whether European or American, it should be borne in mind that we are
no longer talking about authors, of the works that would remain
protected for the extra 20 years. Those authors will have been dead for
50 years. We are talking about current authors, however, who create
new and valuable works based on the public domain. If the underlying work
is unprotected in Europe as well as in the United States, those new U.S.
derivative work creators, as authors, will reap the kind of economic benefits
in both jurisdictions for which copyright is indisputably designed. There
is real cultural value in allowing works to become part of the common heritage,
so that other creative authors have the chance to build on those common
elements.

In this context, therefore, the notion of international "harmonization"
simply obfuscates the real issue: there is no tension here between Europe
and the United States. The tension, rather, is between the heirs and assignees
of copyrights in old works versus the interests of today's general public
in lower prices and a greater supply of new works. Europe has resolved
the tension in favor of the owners of old copyrights. We should rather
favor the general public. It is notunfair to turn off the royalty
stream at 75 (or life + 50) years and to allow then-current creators to
have a go at making new and better works.

If there is any "unfairness" to U.S. copyright owners resulting
from the differing terms in Europe and the United States, it is not the
shorter term here that is the problem but rather Europe's conscious discrimination
against works from countries that have shorter terms than Europe.(35)
The Berne Convention generally requires "national treatment"
of foreign authors, which is to say that foreign works are entitled to
the same protection as domestic works. One of the few exceptions to mandatory
national treatment is the "rule of the shorter term," which permits
(but does not require) Berne members to protect works for the domestic
term or for the term of the country of origin, whichever is shorter.(36)
The United States has never adopted the rule of the shorter term, and there
are many examples of works that remain protected here after falling into
the public domain in most of the rest of the world. The European Union,
however, mandates the rule of the shorter term for its member states.(37)
This is the source of any "unfairness" to United States copyright
owners.

Let us consider a simpler example. Suppose Europe decided to guarantee
a $20,000 income to each of its citizens, the wealthier members of the
public being taxed to support the guaranteed wage. Would "harmonization"
be a ground for adopting such a welfare measure in the U.S. without cost/benefit
analysis? Very doubtful. Now suppose, however, that Europe extends its
new guaranteed annual wage to everyone residing within its borders, on
condition in the case of foreigners that the other country offer similar
treatment to Europeans. Would "unfairness" to Americans in Europe
be a ground for our adopting a similar measure? Is it conceivable that
Senator Hatch and Representative Moorhead would support such a welfare
policy in the name of "harmonization" or "fairness"?

If there is any "unfairness" here, it is the discrimination
against noncitizens by Europe. Our government should perhaps in such cases
seek to persuade Europe not to act so discriminatorily, but surely we would
adopt the welfare measure for ourselves only after carefully considering
all the costs and benefits to those in the U.S. who would be footing the
bill, not only for the poor Europeans residing in the U.S. but also for
the many U.S. citizens whose incomes would call for support under the new
system.

This overt welfare example is, however, no different from what is happening
with the copyright extensions. The claim is that U.S. copyright owners
will lose out in Europe unless we extend. But what will they lose? That
Europe has decided to tax its citizens for the benefit of European copyright
owners causes no loss to U.S. copyright owners. U.S. copyright owners always
expected their copyrights to expire in 75 years, and when that happens,
they are receiving no less than they expected. (In fact, they only "expected"
56 years, because we've already extended the term once, in 1976.) Matching
the European period will require not just Europeans but also the U.S. public
to pay those same U.S. copyright owners (and to pay for the use of extended
European copyrights as well). And this welfare transfer does not even consider
the added loss to the U.S. public in the form of new creative works that
are not created because the transaction costs of negotiating copyright
permissions after so many years is too high.

Again we see that "unfairness" to United States copyright
owners in Europe as a basis for extending our copyright terms is a red
herring. The only unfairness involved is Europe's discrimination against
U.S. copyright owners. Our trade representatives should be protesting against
this discrimination as vigorously as they do in other areas of international
trade, but the source of the problem is Europe's unilateral decision to
adopt the nonmandatory rule of the shorter term. That problem is not solved
but is rather exacerbated by our following Europe in extending the terms
of copyright protection.

G. The Balance of Payments

Certain U.S. copyright owners will receive royalty payments from European
users for a shorter period than will European copyright owners from European
users, if the United States does not follow Europe in extending the copyright
term. It does not follow, however, that this will have any net negative
effect on the U.S. balance of trade, even in the short term and much less
over the longer term.

Increasing the term in the United States means not simply that European
users will pay longer. It means that U.S. users will also pay longer,
and not just to domestic copyright owners but to owners worldwide. Works
that are about to enter the public domain were created in 1922, and while
Europeans may take more of our current works than we take of theirs, that
is not necessarily true of works from the 1920s and 1930s. Our use of European
works of classical music and plays as well as art works from this era may
outweigh the use Europeans make of our works from the same period. Short
term balance-of-trade analysis therefore requires an investigation of whether
our use of such works that would remain protected under the proposed extension
would cost more than we would receive in return.

Moreover, a shorter term of protection in the United States will encourage
rather than discourage the production of new works for worldwide markets.
We must recall that the public domain is the source of many of our finest
and most popular works. The U.S. market is itself so large that, with both
European and domestic works in the public domain here 50 years after the
author's death, it alone serves as a strong creation incentive. If the
new work is based on a U.S. work that is also unprotected in Europe, that
new work should be a part of the continuing United States export engine
in the world market. Even if the new work is based on a European work that
remains under protection in Europe, popularity of the work in the United
States will necessarily result in a license (to use the underlying work)
in Europe, again with a net export gain to the United States.

The argument that U.S. copyright owners will unfairly "lose"
royalty revenues from Europe is therefore both wrong and incomplete. It
is wrong because it is not unfair that a work enter the public domain 50
years after the death of its author. It is incomplete because it does not
consider that the royalties in question will be paid not just by Europeans
but also by Americans, and not just to domestic copyright owners but also
to copyright owners worldwide. Additional revenues to a few owners of old
copyrights is not a public benefit justifying adoption of the legislation,
and this remains true even though some part of those revenues would be
paid by Europeans. The extension represents, rather, a heavy public cost,
both in additional royalties paid by the U.S. public and in the loss of
creative new works that will not be produced because the exclusive rights
of copyright remain in full force on works that cost/benefit analysis would
clearly place in the public domain.

VII. CONCLUSION

The proposed copyright term extensions are a travesty that, if adopted
into law, will become a tragedy. They are not based on the public interest
but rather on private greed. Only the technical complexity of the issue
and the diffuse nature of the public harm allows such proposals to move
through the Congress essentially without public debate. They can be stopped,
but not by a silent majority, or even a silent supermajority. Opponents
of the extensions must be heard by Congress, with voices as loud
as those seeking to prolong their parade of royalty welfare checks.

FOOTNOTES

* This chapter is based heavily on the author's Written Testimony before
the Subcommittee on Courts and Intellectual Property, House of Representatives
Committee on the Judiciary, July 13, 1995, to which some 50 copyright and
intellectual property law professors joined as cosignatories. That Written
Testimony was in turn based on a Comment filed by the author with the Copyright
Office in October 1993, at the time of that Office's hearing on the question
of extending the copyright term and to which some 34 copyright law professors
joined as cosignatories. The Comment was published as Dennis S. Karjala,
Comment of US Copyright Law Professors on the Copyright Office Term
of Protection Study, [1994] Eur. Intell. Prop. Rev., No. 12, at 531.
The written testimony appears in Hearings on H.R. 989 Before the Subcomm.
on Courts and Intellectual Property of the House Comm. on the Judiciary,
104th Cong., 1st Sess. (1995). In the 105th Congress the bills are H.R.
604, 105th Cong., 1st Sess. (1997) and S. 505, 105th Cong., 1st Sess. (1997).

4. Intellectual Property and the National Information Infrastructure:
Report of the Working Group on Intellectual Property Rights (1995). Legislation
has been introduced in both houses of Congress to implement the recommendations
of this Report. H.R. 2441, S. 1284, 104th Cong., 1st Sess. (1995).

5. 17 U.S.C. §§ 101-1101 (1994).

6. Id. § 302(a) & (c).

7. Id. § 304(a)(1991). Copyrights on works published prior
to 1964 expired 28 years after publication unless renewed. Renewal became
automatic for post-1963 works pursuant to Pub. L. 102-307 (1991), which
amended ' 304(a) into its current form.

8. Id. § 303.

9. Consider, for example, the statement of Senator Hatch in introducing
S. 483: "The current term of copyright is ... inadequate to perform
its historic functions of spurring creativity and protecting authors."
141 Cong. Rec. S3390 (Mar. 2, 1995). "By providing this across-the-board
extension of copyright for an additional 20 years, I believe that authors
will reap the full benefits to which they are entitled from the exploitation
of their creative works." Id. at S3391.

11. 104 Cong. Rec. S3390, S3392, 104th Cong., 1st Sess. (Statement of
Senator Hatch, Mar. 2, 1995). According to Senator Hatch, Mr. Donaldson's
daughter, now in her early fifties, continues to publish and exploit her
father's works. Mr. Donaldson died in 1947, and this is one of those rare
cases where a creative artist has children so late in life that the copyrights
do not extend over the full life of the artist's children. Such extreme
cases should not, however, constitute the basis for general policy, even
if our goal were to insure royalty flow for the entire lives of all the
artist's children. The music in question, assuming it was first published
in 1927, will produce royalties until 2003, and of course any later works
of Mr. Donaldson will go on longer. Royalties on very popular works can
be the basis of a substantial estate that itself can be the source of income
even after the expiration of the copyright in the underlying works. Even
more important, however, is that 75 years is long enough. The goal of copyright
is not to supply income to descendants for the full economic life
of the work.

15. Robert W. Kastenmeier & Michael J. Remington, supra note
3, at 440-41. A fourth component of Mr. Kastenmeier's test is a clear definition
of the new interest. That component is clearly satisfied for the proposal
to extend the term to life + 70 years.

16. Id. at 440.

17. It stands to reason that we are greater users of U.S. works than
citizens of other countries. Whatever the multiple is (for example, if
foreign uses constitute 20% of the total use of U.S. works, the multiple
is 4:1), the U.S. public will have to pay that multiple of dollars to U.S.
copyright owners for every dollar paid by Europeans.

18. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 133 (1976).

19. Of course, the market for many public domain works may often be
inelastic but small, with the result that competition is thin, or even
nonexistent. This can allow, say, a book publisher to charge a price for
a republished public domain work that is consistent with prices for similar
types of books that are under copyright. Given the thin market, such a
price may be necessary for this publisher even to cover production costs.
This does not mean that the public domain status is irrelevant, because
if a royalty were required in addition, such a book might not be republished
at all, or would have to be sold at an even higher price.

It may also be that the works in question are not public domain works
at all but rather derivative works based on public domain works. A new
derivative work is, of course, itself copyright protected and can be expected
to sell at the same price that the public pays for other protected works
in that category. In this case, continued copyright protection for the
underlying work may require sharing of the profits generated by the new
work. One of the parties sharing the copyright monopoly is, by hypothesis,
the new author, whose creativity has resulted in the new derivative work.
The other will be the owner of the copyright in the underlying work, who
may or may not be distantly related to the original author. In this case,
true concern for authors would seem to favor notlengthening the
protection period, which would allow the current creative author to reap
the full benefit.

Finally, as discussed below, when the underlying work remains under
copyright, the most important cost to the public comes from those new derivative
works that are not created because of the new author's inability
to negotiate permission from whoever owns the copyright 50 years after
the original author's death.

21. Of course, Shakespeare's own reliance on earlier works for essentially
all of his theatrical masterpieces is well known.

22. See generally Jessica Litman, The Public Domain, 39
Emory L.J. 965 (1990); David Lange, Recognizing the Public Domain,
44 L. & Contemp. Probs. 147 (1981). For an argument that copyright
is also intended to accommodate users' rights, see L. Ray Patterson &
Stanley W. Lindberg, The Nature of Copyright (1991), which includes a Foreword
by former Congressman Kastenmeier.

23. Nearly 50 years ago Professor Chafee pointed to examples in which
the veto power of copyright in an author's descendants deprived the public
of valuable works. Zechariah Chafee, Reflections on the Law of Copyright:
II, 45 Colum. L. Rev. 719 (1945). There have been press reports of
refusals by the estate of Lorenz Hart of permission to use Hart's lyrics
to any biographer who mentions Hart's homosexuality and of censorship by
the husband of Sylvia Plath of the work of serious biographers who wish
to quote her poetry. There have also been reports of the Picasso estate's
assertion of rights (apparently moral rights) to prevent the use of any
of Picasso's pictures (even "look-alikes") in a biographical
film of the artist with the content of which the estate disagrees. Anthony
Haden-Guest, Picasso Pic Has Heirs Seeing Red, The New Yorker, Aug.
21 & 28, 1995, at 53-54. Professor Jaszi has provided examples of derivative-work
films whose continued distribution has been limited or even suspended because
of conflicts with the owner of the copyright in the underlying work. Peter
Jaszi, supra note 20, at 739-40.

26. No human author can possibly receive anything more in exchange for
terminable rights in his work under a life + 70 regime than under the current
life + 50 regime. The reason, quite simply, is that no purchaser of copyright
rights will pay anything for the "extra" 20 years of the term,
because those supposed extra years can be freely terminated, along with
whatever remains of the current period, before they ever begin. An exception
is the right to continued exploitation of derivative works, which cannot
be terminated. Even in this case, however, the maximum "extra"
value to the transferring author is the present value difference between
a 50-year and a 70-year protection period. Even for guaranteed income streams,
and assuming that the author is on her deathbed at the time of the transfer
(otherwise the discount periods must include the life expectancy of the
author), this difference is around 5.4% (at a very conservative assumed
5% discount rate). That is, a guaranteed income stream of $1,000 per year
for 50 years has a present value of $19,256 while the same stream for 70
years has a present value of $20,343. The purchaser of the derivative work
right, however, will not be willing to pay anything close to this difference
in present value, because of the overwhelmingly high risk that the derivative
work created pursuant to the purchased right will have an economic life,
like most works, far less than even the life + 50 years now afforded.

27. There have been recent newspaper reports that the manuscript of
Louisa May Alcott's first novel, heretofore unpublished, has just been
"discovered" in the Harvard Library. There are, of course, plans
to publish it, so although it was written in 1849, it would under the extension
remain under copyright until 2047 -- nearly 200 years later! Of course,
it will be in the public domain nearly everywhere else in the world. So
much for "harmonization"!

28. Even the Copyright Office, speaking through the Register of Copyrights
Marybeth Peters at both the House and the Senate hearings, opposes this
aspect of the legislation. Hearings on H.R. 989 Before the Subcomm.
on Courts and Intellectual Property of the House Comm. on the Judiciary
and Hearings on S. 483 Before the Senate Comm. on the Judiciary,
104th Cong., 1st Sess. (1995) (Statements of Marybeth Peters, Register
of Copyrights); see also 50 Pat., Trademark & Copyright J. 589
(1995) (summarizing testimony at the Senate hearings). The bills before
the 104th Congress would have extended protection of pre-1978 unpublished
works to the year 2013. If published before 2013, protection would continue
to 2048. The bills before the 105th Congress (1997-1998) delete the extension
of protection to 2013 for pre-1978 works. Such works published before 2003,
however, will under the current bills still be protected until 2048.

29. Termination rights accrue 35 years after a grant by an author and
expire five years later. Because the extra 20 years that would be added
by the extension to the protection period begin 50 years after the author's
death, all termination rights with respect to any authorial transfer will
either have been exercised or have expired.

30. Council Directive 93/98/EEC (Oct. 29, 1993).

31. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 133-34 (1976).

32. E.g., 14 Omnibus Copyright Revision Legislative History,
House Hearings 1975 (Part 1) 133-34, 141-42 (testimony of Irwin Goldbloom,
Deputy Assistant Attorney General, Civil Division, Department of Justice).
Some believe that special constitutional problems arise from an extension
of the period of protection for works already under copyright, because
it recaptures from the public domain works that should be freely available
under the "bargain" made at the time the work was created and
offers no countervailing public benefit. They argue that the constitutional
term "limited times" must be interpreted in terms of the constitutional
goal to promote the progress of science and the useful arts. See also
Lavigne, supra note 10, at 354-58 (arguing that the extension would
run afoul of the constitutional requirement that copyright legislation
promote the progress of science as well as that protection last only "for
limited times").

34. The Adventure of the Veiled Lodger was published on January
22, 1927, and The Adventure of Shoscombe Old Place was published
on March 5, 1927. Robert Burt de Waal, The World Biography of Sherlock
Holmes and Dr. Watson 13, 23 (1974). This same source lists other Conan
Doyle stories as having been published in 1921, 1922, 1923, and three each
in 1924 and 1926.

35. The remainder of this subsection constitutes new material not present
in the published chapter of the book.